Catling & Gould - [2022] FedCFamC1F 233

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Catling & Gould [2022] FedCFamC1F 233

File number(s): SYC 6392 of 2017

Judgment of: CHRISTIE J

Date of judgment: 13 April 2022

Catchwords:
FAMILY LAW – JURISDICTION – Where proceedings were initiated in the Family Court of Australia prior to 1 September 2021 – Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208 followed – Legislative intent that the jurisdiction of the Family Court of Australia continue in the Federal Circuit and Family Court of Australia (Division 1) in respect of proceedings filed in it – Where the matter has been transferred by the Chief Justice of Division 1 and subsequently transferred by the Chief Judge of Division 2 – Where the Court is satisfied that Division 1 has jurisdiction to hear and determine this application.

FAMILY LAW – PARENTING – Allegations of family violence and excessive alcohol consumption made against the father – Concern as to the father’s mental health – Where the father’s engagement with treating practitioners has suffered by his lack of candour with them – Where the father has been encouraged in his view that he is not responsible for the position he finds himself by those closest to him – Where it is only when there is some indication of changed thinking or changed behaviour that there can be confidence the father’s conduct won’t be repeated – Where interactions with the father cause the child and mother anxiety – Not in the children’s best interests to spend supervised time with the father – Orders for the children to live with their mother and spend no time with their father.

FAMILY LAW – CHILD SUPPORT – Where hardship to the father can only be rectified by setting the child support agreement aside – Exceptional circumstances substantiated – Agreement set aside – Mother able to apply for child support assessment if required.

Legislation:
Child Support (Assessment Act) 1989 (Cth) ss 99, 136

Child Support (Registration and Collection) Act 1988 (Cth)

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA

Federal Circuit and Family Court of AustraliaAct2021 (Cth) ss 52, 132, 149

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 1, Sch 2

Evidence Act 1995 (NSW) s 128

Mental Health (Forensic Provisions) Act 1990 (NSW) s 32

Cases cited:
Balzano & Balzano (2010) FLC 98-048

Cirillo & Cirillo (No 4) (2022) FedCFamC1F 208

Simpson and Hamlin (1984) FLC 91-576

Nevins& Urwin (No 3) [2022] FedCFamC1F 201

Division: Division 1 First Instance

Number of paragraphs: 193

Date of hearing: 21-25 February 2022

Place: Sydney

Counsel for the Applicant: Mr Dura

Solicitor for the Applicant: Barry Nilsson Lawyers

Solicitor for the Respondent: Marsdens Law Group

Counsel for the Independent Children's Lawyer: Mr Hill

Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers
ORDERS

SYC 6392 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CATLING

Applicant

AND:
MR GOULD

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

13 APRIL 2022

THE COURT ORDERS THAT:
1.Ms Catling (“the mother”) have sole parental responsibility for Y (born 2014) and X (born 2012) (“the children”).
2.The children live with the mother.
3.The Child Support Agreement dated 4 October 2017 is set aside as and from 19 January 2019.
4.Mr Gould (“the father”) pay to the mother the sum of $12,046.48 by way of enforcement of child support arrears as at 18 January 2019 within 28 days.
5.The mother’s application for enforcement of the Child Support Agreement dated 4 October 2017 is otherwise dismissed.
6.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Catling & Gould has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:

Ms Catling (“the mother”) and Mr Gould (“the father”) (“the parents”) are the parents of two children: X (born in 2012, aged 10) and Y (born in 2014, aged seven) (“the children”). These proceedings concern competing applications for parenting orders relating to the children, the father’s application to set aside a Binding Child Support Agreement (“the child support agreement”) and the mother’s application to enforce the child support agreement.
The parents entered into consent orders dealing with parenting matters and financial matters on a final basis on 13 October 2017 (“the final consent orders”). At about the same time they also signed the child support agreement and a Financial Agreement dealing with spouse maintenance.
The mother commenced proceedings in respect of parenting matters on 12 March 2019. On 9 September 2019 she amended her application and sought to enforce the child support agreement between the parties.
The father filed a Response to Initiating Application dealing with parenting matters and then subsequently amended his response to seek discharge of the child support agreement on 9 September 2020.
Mr B (“the paternal grandfather”) sought parenting orders as intervenor but discontinued before the final hearing.
BACKGROUND
The parties commenced cohabitation in October 2009 and married in 2011.
The parties separated on 29 January 2017 and are divorced.
The final consent parenting orders provided for the children to live with the mother and spend time with the father.
The mother has re-partnered.
On 14 May 2019, Senior Registrar Campbell (as he then was) made orders suspending the father’s time with the children and appointed an Independent Children’s Lawyer (“the ICL”).
JURISDICTION
After I had heard the evidence in this matter and while judgment was reserved it became apparent that an issue had arisen about the operation of the legislation which commenced 1 September 2021 in so far as jurisdiction was concerned.
The matter was listed before me and the lawyers for the mother, the father and the ICL all confirmed that they accepted that the jurisdiction to determine the matter in the Federal Circuit and Family Court of Australia (“FCFCOA”) Division 1 existed. They did so on the basis that they accepted the law was as I outline here.
This matter commenced in the Family Court of Australia (“the FCA”). This matter was heard in FCFCOA Division 1 (“Division 1”). They are the same Court with a different name.
The manner in which the judges of the Court obtain jurisdiction has changed.
To create a single point of entry to the two courts, original jurisdiction is conferred on FCFCOA Division 2 (“Division 2”). As a consequence, Division 1 only obtains jurisdiction following a transfer from Division 2.
Sections 132(1)(d)(i) and (ii) of the Federal Circuit and Family Court of AustraliaAct2021 (Cth) (“the FCFCOA Act”) provides that Division 2 has original jurisdiction in matters instituted in the Court by the Child Support (Assessment Act) 1989 (Cth) (“CSAA”) or Child Support (Registration and Collection) Act 1988 (Cth) (“CSRCA”). The application to vary or discharge a Binding Child Support Agreement is a proceeding under s 136 of the CSAA. Prior to 1 September 2021, s 99 of the CSAA conferred jurisdiction on the FCA. That section was amended by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) s 3, Sch 2, Item 163, which conferred jurisdiction on Division 2. Where once both Courts had jurisdiction under s 99, that Act explicitly gave it to Division 2 alone.
The application to enforce the child support agreement is an enforcement proceeding under the Family Law Act 1975 (Cth) (“the Act”).
Parliament appears to have intended that there be no disruption to the hearing of matters in Division 1. However, as her Honour Justice Hogan set out in Nevins& Urwin (No 3) [2022] FedCFamC1F 201 in which she states a case to the Full Court of Division 1:
There are no provisions of the [Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)] which relate specifically to proceedings, commenced in the previously prescribed original jurisdiction of this Court before 1 September 2021, which have not been finalised by 1 September 2021.
This differs from the situation in relation to appeals: for example, item 30 of Division 3 (Matters substantively heard, in whole or part, before the commencement day) of Part 4 of Schedule 5 relevantly provides that:
30       Matters before the Full Court of the Family Court of Australia
Judgment to be delivered by the Federal Circuit and Family Court of Australia (Division 1)
(1)      If:
(a)before the commencement day, a Full Court of the Family Court of Australia has heard, in whole or in part, any of the following:
(i)an application made under section 94AA of the Family Law Act 1975 for leave to appeal under Part X of that Act;
(ii)       an appeal allowed by Part X of that Act;
(iii)      an appeal referred under subsection 96(5) of that Act;
(iv)      a special case for the opinion of the Full Court; and
(b)       on the day before the commencement day, either:
(i)a substantive hearing of the application, appeal or special case has not concluded; or
(ii)a substantive hearing of the application, appeal or special case has concluded, but judgment has not been delivered in relation to the application, appeal or special case;
then, on or after the commencement day, despite the amendments to the Family Law Act 1975 made by this Act, the Federal Circuit and Family Court of Australia (Division 1), constituted as a Full Court, must:
(c)if required, conclude the substantive hearing of the application, appeal or special case; and
(d)deliver the judgment in relation to the application, appeal or special case.
Regard may be had to prior evidence
(2)A Full Court of the Federal Circuit and Family Court of Australia (Division 1) may have regard to any evidence given or received, and arguments adduced, by or before the Full Court of the Family Court of Australia, as constituted before the commencement day.
…
Appellate jurisdiction
(5)To avoid doubt, a Full Court of the Federal Circuit and Family Court of Australia (Division 1) has appellate jurisdiction for the purposes of this item.
Reference to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth) (“the Transitional Provisions Rules”) reveals that r 7 of the same provides as follows:
7Proceedings before the Family Court of Australia before 1 September 2021
(1)      This section applies in relation to a proceeding if:
(a)immediately before 1 September 2021, the proceeding, or part of the proceeding, was in the Family Court of Australia; and
(b)       the proceeding had not been determined before that day.
(2)For the purposes of the FCFCA Act, on and after 1 September 2021, that proceeding is taken to be a proceeding in the Federal Circuit and Family Court of Australia (Division 1).
The FCFCOA Act provides that if a family law or child support proceeding is pending in Division 2, it may be transferred to Division 1 on the Court’s own application: FCFCOA Act s 149. However, this application was not pending in Division 2.
His Honour Justice Aldridge has recently considered the issue of jurisdiction in Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208 as follows:
31. It is clearly established that a court without jurisdiction is not powerless. Whilst it cannot exercise jurisdiction that it does not have, it can hold a hearing to determine the question of jurisdiction, make findings of fact and law and make orders determining the proceedings, such as dismissing them and making costs orders. However, the order of transfer cannot be made by a judge of Division 1. Thus, the order cannot be seen as an order properly available to dispose of proceedings where the Court has been found to have no jurisdiction.
32. This is because the power to transfer matters from Division 1 to Division 2 is granted only to the Chief Justice under s 52 of the [FCFCOA Act] and may be exercised on his or her own initiative.
33. The jurisdiction and power of the Chief Justice to do so stands apart from the exercise of power under the original jurisdiction of the Court under the repealed s 31 of the [Family Law Act 1975 (Cth)], and a combination of s 25 and s 132 of the [FCFCOA Act]. It is an independent power.
34. The present proceedings are a pending proceeding in Division 1 and falls within the definition of “family law or child support proceedings”, as defined by s 7 of the [FCFCOA Act]. This is because that section defines the phrase as “proceedings in respect of which [Division 2] has original jurisdiction”, as opposed to matters in Division 2 (which obviously would not require transfer to it). Thus, s 52 applies to matters of the kind listed in s 132 of the [FCFCOA Act].
35. Thus, because the transfer of the proceedings was the exercise of a specific jurisdiction and power in the hands of the Chief Justice, the transfer to Division 2 was valid.
36. No question can arise as to the power to retransfer and the subsequent conferring of jurisdiction under s 25 of the [FCFCOA Act].
In this case the Chief Justice made an order on 30 March 2022 transferring the matter from Division 1 to Division 2. He used the power in s 52 of the FCFCOA Act.
The Chief Judge then made an order on the same day transferring the matter back to Division 1. He used the power in s 149 of the FCFCOA Act.
The only question which remained was whether the power to transfer a proceeding exists, absent jurisdiction to determine the proceeding itself. Or in other words, is s 52 of the FCFCOA Act appropriately utilised to transfer a matter?
That question is yet to be determined by the Full Court of the FCFCOA. I accept the reasoning of his Honour Justice Aldridge as set out above and find that I have jurisdiction to determine the whole of the controversy before me.
THE LAW: PARENTING
The objects and principles set out in s 60B of the Act strike a balance between two concepts – on the one hand the children’s right to know, see, spend time with and be cared for by both of their parents and on the other hand the need to protect the children from being subjected or exposed to abuse, neglect or family violence and consequent potential physical or psychological harm.
Where there is an unacceptable risk of physical or psychological harm to the children, protection from harm takes precedence over the child’s theoretical right to know and be cared for by a parent: ss 60B(2)(a), 60CC(2A) of the Act.
THE LAW: BINDING CHILD SUPPORT AGREEMENT
In the ordinary course, child support is payable as a consequence of either the payer or the payee seeking and obtaining an administrative assessment of the child support payable. The legislature permits parties to depart from the ordinary course and enter into a child support agreement.
If the agreement between the parties concerning child support is in writing and signed and each of the parties has received independent legal advice, the child support agreement will be binding upon them: s 80C of the CSAA.
Where the parties are bound by the terms of a child support agreement then absent termination by consent the Court may be called upon to set aside the agreement: s 136 of the CSAA.
The circumstances in which a binding child support agreement may be set aside are limited. Here it was argued on behalf of the father that the agreement would be set aside because s 136(2)(d) of the CSAA applies. That is, since the making of the agreement, exceptional circumstances have arisen such that the father will suffer hardship in the event that the agreement is not set aside.
The test to set aside a binding child support agreement on the basis of changed financial circumstances is a difficult one. The father faces two significant hurdles in this case. The first is to establish that the circumstances are indeed exceptional and the second is to establish that they have arisen since the making of the agreement.
On behalf of the mother it was argued that the father’s income has in fact increased since separation. That does not, however, paint the whole picture.
CONSIDERATION: PARENTING
The mother submits that the Court would find that the father’s conduct would place the children at risk of being exposed to family violence.
The father’s health is central to the assessment of risk. While he has been relatively diligent in seeking treatment from psychologists and medication via his psychiatrist, his engagement with those treating practitioners has suffered as a consequence of his lack of candour with them and his inability to understand and appreciate the objective seriousness of the concerns raised by others (particularly his former spouse).
The father has been diagnosed with chronic Major Depressive Disorder and anxiety. In May 2012, he first consulted Dr D (“Dr D”) who has remained his treating psychiatrist.
The father has also reported to his treaters over a long period of time that he struggles with binge drinking alcohol.
The father submits that he has been wrongfully separated from his children and any risk (or perceived risk) is ameliorated by the conditions to which he is prepared to agree in order to recommence time with his children.
Family violence
The mother alleges that the father engaged in family violence commencing in 2010 before the parties were married, continuing during the parties’ relationship and culminating in the father making separate threats to kill the mother and her partner after separation. In large part the father denies the mother’s allegations and to that end it will be necessary to make findings about many of the disputed incidents.
The father was legally represented in the proceedings. The father swore an affidavit in response to the mother’s evidence in chief on 2 February 2022. He specifically joined issue in respect of certain of her allegations. Where the father has had the opportunity to give evidence about an allegation made by the mother and has chosen not to, I find that he concedes that the events described occurred as the mother has sworn, or largely, as she has sworn.
In 2002, an Apprehended Domestic Violence Order (“ADVO”) was made naming a former partner of the father as the protected person. The material produced on subpoena in these proceedings states that the father breached the ADVO by throwing a wine glass which hit the back of his former partner’s head. The version of events the father told the police (according to the documents) was that he was intoxicated and the glass “went out of his hand”. He did not see where it landed or hear a smash. While he “had the shits”, he did not intend to hit the victim. The father was convicted of breaching an ADVO on 22 January 2003. He was sentenced to 50 hours of community service.

In 2010, the mother says the father punched her neck, shoulder and arm while she was driving him home from the pub. The father agrees that there was an occasion on which the mother collected him from the pub but stated “I deny that I ever hit [the mother] or became angry with her”. The mother says that following this incident the parties postponed their wedding. The parties did postpone their wedding but the father says that was due to the stress the mother was feeling as she was studying at the time. I find it more probable than not that the father was violent to the mother on this occasion as she suggests. In forming that view I have had regard to the material from the mother’s psychologists during the relationship in which the mother has given a history of the domestic violence perpetrated by the father.
In 2011, the parties attended an event where the mother alleges the father physically abused her by pushing and shoving her chest. She says she then spent the night in her mother’s room. The father says “I deny that [the mother] and I had an argument and that I shoved her chest and shoulder”. Ms E (“the maternal grandmother”) gave evidence about this incident. She was not challenged about that evidence. Her evidence confirmed that of the mother’s. I accept the mother’s evidence.
In October 2011, when the mother was pregnant with X, she says the father sent her texts saying “Ur [sic] boring as fuck”, “our relationship sucks” and “U [sic] bust my balls”. The father does not deny sending the texts but says he does not recall sending them. I accept the mother’s evidence.
On 11 November 2011, the mother says she was going to overseas for a work trip. She says the father sent her messages saying “I’m glad ur [sic] going away so I can do what I want” and “Ur [sic] making me do these classes. Another waste of a weekend. Would rather watch grass grow”. The classes the father was referring to were birthing classes in preparation of X’s birth. The father does not deny sending the texts. He says he does not recall sending them. I accept the mother’s evidence.
In 2012, the parents agree that the father was suspended from soccer for 15 months after hitting a referee. The father says this occurred by accident as he threw his arms into the air in frustration and his arm made contact with the referee. The father accepted in cross-examination that 15 months was a long suspension and not the type of punishment that would be usual if the incident was, as he contended, accidental. In cross-examination, the father said he had grabbed the referee’s arm. The father discussed this incident with Dr D in 2012 who noted that at the time of this incident he was also “facing charges from the soccer team in relation to further on field bad behaviour”. I find that the father’s temper resulted in him behaving in a physically aggressive manner to a referee. This is not family violence but it is relevant as it suggests the father has a more broad-based problem with anger and aggression as a response to adverse circumstances. Such conduct poses a risk to the children even if they are not the targets of the father’s anger but are witnesses to it.
In 2012, the mother was in hospital for two weeks before X was born. The mother says she asked the father to come to the hospital as she was unwell. The mother says when she phoned the father he was verbally abusive to her, had been drinking and refused to attend the hospital. The mother says that when the father did eventually attend the hospital, he shouted, swore at her and threw his wedding ring at her. She says she was approached by nursing staff to see if she was okay. The father denies that he was hesitant to attend the hospital because he was drinking. He says he provided support to the mother by phone because he does not like hospitals. He says when he did attend, he was not hostile or under the influence of alcohol and did not swear. The mother’s evidence is supported by the evidence of her mother. The maternal grandmother was not cross-examined about the events described in her affidavit. I find that the events the mother describes occurred as she deposes.
In 2012, when X was two months old, the mother says the father physically abused her. Her evidence was that because of this abuse, she left the home with X and their dog to stay with her mother for several days. The father says the parties argued but he denied putting his hands on her or abusing her. The maternal grandmother gave evidence about this incident. She says the mother phoned her, highly distressed and drove to her home in the F Region. I accept the evidence of the mother and her mother about these events for the reasons which follow.
In evidence before me was a letter from the father’s psychiatrist, Dr D, dated 24 May 2012 and addressed to the father’s general practitioner Dr G (“Dr G”). Dr D wrote:
[The father] tells me that there have been some incidences of verbal aggression and there was one incident of physical domestic violence between he and [the mother] in March this year… Relationships with his in-laws have been strained since the incident of domestic violence.
Further confirmation of the accuracy of the mother’s account is found in the contemporaneous correspondence from psychiatrist, Dr H (“Dr H”). Both the father and mother had met with Dr H in her capacity as a couple’s counsellor. In her letter to Dr D dated 25 June 2012, Dr H said:
[The father] has difficulties managing his reactivity in relationships. This has resulted in significant escalations of anger including physical outbursts… the couple acknowledged that the conflict escalated to a physical level in March, after [the father] had drunk a lot of alcohol, at which time [the mother] felt unsafe.
On the basis of the father’s contemporaneous concession to his treating psychiatrists (Dr D and Dr H) that he had been physically violent to the mother I reject his denials. I am unable to say whether the father knowingly swore false evidence or actually believes what he has sworn. In either event, I am concerned that his failure to acknowledge the events which plainly occurred provides no confidence that he understands their magnitude and the importance of avoiding such conduct in the future.
In May 2012, the mother alleges that the father pushed X’s pram with X inside, causing it to almost go over the gutter. The father denies that he did so. The maternal grandmother was also present on this occasion. In cross-examination it was put to her that the father’s actions on this occasion did not place X’s safety in jeopardy. She disagreed. I accept her evidence.
In paragraph 125 of the mother’s affidavit sworn 5 November 2021, she gives evidence that the father took his anger out on the parties dog including kicking it and throwing it out of his way. The father denies ever harming the family’s pets.
On 24 September 2012, Dr H records in her notes an incident as relayed by the mother:
[The father] out with friends sat night – [the mother] found a text from a girl on a phone – escalation in distress culminated in [the father] throwing dog against glass wall – [the mother] asked [the father] to leave and he did – [the mother] felt frightened/distressed – [the father] gave his account of text - Acknowledges he lost it with dog.
As outlined above the father denied, on oath, that he had hurt the family dog. However, more proximate to the events the mother described in her affidavit, the father acknowledged to Dr H having “lost it with [the] dog”. I find that the father did, as the mother contends, take out his aggression on the family pet. While this act is not directly physically violent to the mother or children it is plainly family violence. In particular s 4AB(2)(f) of the Act provides as an example of family violence “intentionally causing death or injury to an animal”.
On 26 March 2013, the father, mother and Ms J (“the paternal grandmother”) were having coffee. The mother gave evidence that the father became angry, swore at her, threw her work pass on the ground and stuck his middle finger up at her as he left the café.
Following that incident, the mother attended on Dr H on 2 April 2013 and provided her with a type written note about the events of 26 March 2013. That note read:
Episode on Wednesday morning which ended in name calling and throwing my work pass in public.
…
Feel like I am being asked to accept his outbursts and not react so that it doesn’t escalate any further. I am angry that I am being treated this way and don’t feel that I deserve to be in this position.
…
Worried about how much more I can or should take of [the father’s] outbursts.
The mother says that on 9 April 2013 she took X to the medical centre. The father was angry about this. He threw the bread roll he was eating on the ground and smashed a glass on the kitchen floor.
The mother reported her concerns about the father’s behaviour to her then psychologist, Dr H, explaining that in the years leading up to 2013 the father would “act out like a child” and “smash glasses” and that he “was previously binge drinking… ending up in violence a few times with me”.
The father was an inpatient at the K Clinic for three weeks in April and May of 2013. In his affidavit the father does not deal with his admission but gives evidence that he undertook outpatient Cognitive Behavioural Therapy. He said it “did not assist in circumstances where [the mother] became aggravated when I did not see eye to eye with her”.
In 2014, after arriving home from the hospital after giving birth to Y, the mother gave evidence that she forgot the insulin she left in the hospital fridge. In response she said the father said to her “Are you serious? You’re fucking hopeless”.
In early 2015, the mother alleged that the father yelled and swore at X saying words to the effect of “You can fucking walk” and “You are a fucking pain”. The father denies becoming angry, swearing or yelling at X. The father says “I deny becoming angry with X. After X asked me to pick him up, I said to him words to the effect of ‘No, you are old enough you can walk, come on now’”. The father says “I did not swear or yell at X”.
On 4 October 2015, the parties were expecting visitors at their home on the day of Y’s christening. The father was cleaning the back porch. The mother says that X grabbed the hose and wet the porch at which time the father screamed at X and “threw him across the tiles of the porch”. The father agreed he may have yelled but he says the mother has made up the allegation that he threw X across the veranda.
I find that the father became angry with X on both occasions. However, I cannot make a definitive finding about the nature and extent of the father’s aggression on those days.
In November 2015, the family was at the L Shopping Centre in City M. Both parties agree that X began to throw a tantrum. The mother says that the father, in response, picked X up by his arm. The mother attributes X’s tears on that occasion to the way in which he was picked up by his father. The father says X was already crying when he picked him up. I cannot discount the fact that the father may have over-reacted to X’s misbehaviour but I am unable to make a positive finding on the basis of the contested evidence that the father was responsible for X’s distress.
In December 2015, the mother describes the parties as having arrived home from a work Christmas party and engaged in an argument. She says the father was intoxicated and began to yell and swear. She says X woke up because of the noise and she threatened to call the police, but decided not to so as not to scare the children. The father agrees that they argued on this occasion and that the topic of their argument was the father’s drinking habits. The father says he perceived the mother to be controlling since, at the point in time this argument occurred, the arrangement between them was that the father’s pay was directed to the mother’s account and from those funds she made available to him $138 per week for him to spend.
From the agreed facts, it is plain that the parties’ argument centred on the father’s drinking. He offers (presumably to explain his conduct) the fact that he experienced his partner as financially controlling. It is important to understand that there is a substantial difference between feeling that one’s spouse is controlling because he or she (in this case she) has implemented a system of budgeting and the type of financial control that constitutes family violence. Section 4AB(2)(h) of the Act gives as an example of family violence:
Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support.
In this case, the father advances the mother’s conduct as a way to justify his own. The email from the mother to the father dated 21 December 2013 sets out the mother’s contemporaneous concerns about the father’s spending on gambling and alcohol.
The situation in the parties’ home in March 2016 appeared to have deteriorated and the mother describes various events during that period where her family and the father’s family were involved.
In 2016, the father visited a venue in Sydney with a friend. The mother says the father returned home drunk and became verbally abusive toward her. This woke X. The mother says that X entered his parents’ bedroom asking what was wrong. The mother returned X to his room and when she returned to the parties’ bedroom, the father had passed out.
In March 2016, the mother says the father’s shouting about mess caused the children to cry and the maternal grandmother called the paternal grandfather and the father went and stayed with him.
On 21 March 2016, the mother gave evidence that the father said their house was a “fucking shit hole”. She says the father threw X’s picture to the floor and glass broke in X’s presence. On this occasion the mother says the father left the home and stayed with his father.
In April 2016, the mother says the father threw the children’s toy box across the room, breaking some of their toys. The mother says her friend Ms N was present.
The father in his material agrees that the children’s toys being out of place was an issue for him. He says he would become stern with the children, but he denied throwing their toys, yelling or swearing.
The mother went to see Dr H in April 2016, however the exact date is not clear from Dr H’s notes. Dr H recorded:
[The mother] really really anxious today. Worst I’ve ever felt. [The father’s] Anger. Blew up again a couple of weeks ago.
That contemporaneous record is consistent with the mother’s affidavit material. I find that the events which the mother records as having taken place in March/April 2016 took place as she describes.
In October 2016, the family travelled to City P with the maternal and paternal grandparents. Both the mother and the maternal grandmother gave evidence that on one morning of the holiday the father had an outburst at breakfast and shouted to maternal grandmother “fuck off” and stuck the middle finger up at her in front of the children. The father stayed in a different room for several days but returned to the mother’s room after the mother says that the paternal grandfather begged her to allow him back.
On 25 December 2016, the mother gave evidence that the father screamed at her “this house is a shit hole. It’s not decorated enough” in earshot of the children. The father could not recall being annoyed with the mother on this occasion but denies making the comments as described by the mother.
The father says he remembers being annoyed with the mother at Christmas 2016 (about a different issue – she had invited people to their home) but does not recall using the words attributed to him. The following day, the mother says the father was in a bad mood and asked her why she was having friends over again. The mother says she cancelled the invited guests as a consequence of the father’s displeasure and removed the children from the home to shield them from any potential outburst from the father.
On 29 January 2017, the parties separated. Following separation they implemented a parenting arrangement whereby the children lived with the mother and spent time with the father on weekends.
During 2017, the mother says there was an occasion when the father was taking X to a birthday party. He says that Y threw an ‘assortment’ of items in the fishpond in their garden before going to the party. Some weeks later, X told the mother that “Dad had to pull Y out of the pond. Y was coughing out water”. The father says “at no point did Y fall into the pond”. I am not able to make a finding as to whether this occurred as X reported to the mother.
On 14 and 15 September 2017, the father says he received a number of text messages and calls from the mother stating that she would not allow the children to spend time with him that weekend. The father says this is because he did not want to sign a Binding Child Support Agreement. Further, the father says the mother threatened to withdraw the sale of the marital home, and said words to the effect “you can wait five years before you see a cent”. The mother says those text messages have been edited and in fact the father sought to vary the parenting arrangements that weekend. The father does not say that the child support agreement is void or voidable because of any conduct on the part of the mother and so it is not necessary in the context of these applications to make a finding about their competing contentions.
On 4 October 2017, the father signed the child support agreement.
On 13 October 2017, the parties entered into final consent orders dealing with property and parenting. The parenting orders provided for equal shared parental responsibility, for the children to live with the mother and spend time with the father each alternate weekend (Friday after school – Sunday at 7.00 pm) and each Tuesday night during school terms, with extra time with the father during holiday periods. This arrangement continued up until the events that occurred in February 2019, discussed below.
On an occasion in early 2018, the mother received a telephone call from the father while the children were in his care. The father told the mother the children were misbehaving while he was trying to work. The mother rang the maternal grandmother and reported what had occurred including the father referring to X as “running around like a fuckwit” and being unaware of Y’s location.
The mother went to collect the children from the father (accompanied by her mother). As the mother got into the car to leave, she and the maternal grandmother say the father slammed the car door, almost hitting the mother’s foot. Both the mother and maternal grandmother gave evidence that as they drove away the father yelled “fuck you” and stuck up his finger. The children were present. The maternal grandmother says that X asked “[w]hat is wrong with daddy?” The father agreed that he had phoned the mother and she attended to collect the children. The father did not deny slamming the door but indicated he did not recall doing so. At paragraph 46 of his affidavit, he agreed that he used inappropriate language but denied it at paragraph 159. In accepting that he had sworn, his affidavit said “[m]y words at the time reflected my frustration with [the mother] and our relationship”. It is troubling that when the father responded to the affidavit of the maternal grandmother he denied having spoken inappropriately or acting in the manner described on this occasion. His capacity (on oath) to give markedly different evidence about the same issue impacts on the weight I can place on his denials. This incident is concerning. The father was spending time with the children in accordance with the final consent orders. The father was having difficulty managing the children’s behaviour and asked the mother to collect them. She obliged. The fact that he was, in those circumstances, unable to control his anger or frustration speaks to the reasons why the mother contends she is fearful of him and his temper and how that may manifest if there were orders for the children to spend time with him.

On 23 January 2018, the mother gave evidence that the children were with the father, who returned them to her earlier than scheduled. She says the father was angry, swore, slammed the front door and stuck his finger up at the mother and children. The father said “I haven’t washed the kids or given them dinner. They were misbehaving”. The following day the mother sent the father an email regarding his behaviour the day prior. He replied accusing her of going overboard.
On 28 September 2018, the parties exchanged text messages regarding picking Y up from her preschool’s sports day. The mother says the father sent her a message:
I’m going to keep the kids as well as I think they are better off with me than living with you. Got an issue ring the cops.
The father says he does not recall the exact content of the text messages between the parties at this time but says at the time he was dealing with having no job, and suffering from heightened anxiety and depression.
On 17 October 2018, there were further text messages between the parents about their application for divorce. The father made threats towards the mother’s then partner, Mr O. The text messages read:
Father: I will smash [Mr O] to fuck
Mother: Are you threatening him?
Father: Yes. I will kill the cunt
Mother: No worries. When do you want him to bring them around?
Father: I have loaded the gun so whenever
Mother: I thought you only hit women
Father: Only you. I will put 6 bullets in his head
Mother: What sort of gun do you have?
Father: Come and find out cockhead
The father agrees he sent the messages. By way of explanation for the text messages the father’s affidavit says “I was feeling emotional after [the mother] had arranged for her new partner to visit me to retrieve documents relating to divorce. I didn’t think it was appropriate for that to have happened”. The father said he now understood that this would have made the mother afraid and is “doing better now”. The more significant issue is to understand what (if anything) the father has done since he realised his actions would have occasioned fear. It is only if there is some indication of changed thinking or changed behaviour that there could be any confidence that the conduct would not be repeated.
In December 2018, the children were due to spend time with their father pursuant to the final consent orders. The father failed to attend to collect them. The mother says he failed to attend because he had been drinking.
On 9 December 2018, the parties engaged in a text message exchange. The father sent a message to the mother that said “fine fuck you then”, “Just remember I will take the kids [on] Tuesday” and “Shit is going to hit the fan now”.
On 19 December 2018, the father sent a text to the mother “Hey I’m not coping to [sic] well and thinking of going to [Q] hospital just to let you know” and “Hey if something goes bad tell the kids I love them okay”.
The father says that in December 2018, he recognised that he hit a very low point his life and became more depressed and anxious. The father says he was “having problems with [the mother]”. Again, this evidence is concerning as the father had finalised his property settlement, had obtained consent parenting orders and was spending time with the children (except when he failed to exercise it). The father’s evidence has a worrying tendency to deflect responsibility for his conduct to the mother.
Equally troubling was the father’s evidence that his family assumed he was “playing the guilt card”. However, the father says he “takes [his] mental health very seriously and would never use it to manipulate a situation”. This evidence is at odds with the father’s evidence elsewhere in his affidavit material. The father gave evidence:
I agree that I was charged for drink driving on one occasion. That was my first and only driving under the influence offence. I understand what I did was wrong and the gravity of my mistake. I did state to [Dr S] that I did take 7 Xanax tablets, though this was not true. I said this as a cry for help. I was highly emotional during this time.
As a consequence of the father’s evidence, I am left in the position where I am unable to determine whether he did or did not take an overdose at this time. Either he took an overdose which raises concerns about his mental health or he pretended to take an overdose which raises different (but perhaps not unrelated) concerns.
On 16 January 2019, the parties engaged in a discussion regarding finances. The mother says she indicated to the father that he owed her $13,000. She says the father responded “Haha and where the fuck do you think I will get that from??? Haven’t you screwed me enough??... You have more chance of winning the lotto my dear…”. This particular exchange was part of a much larger text message communication between the parties, some of which was conciliatory. I accept that the father was suffering from financial stress at the time as he was unemployed and had no tenant in his apartment.
The children spent time with their father (and paternal grandmother) in early February 2019.
On 4 February 2019, the father was admitted to R Hospital after expressing suicidal ideation. When the father was released, he sought to resume time with the children. The mother asked that she be able to discuss this with the father’s mental health team. The acute care team declined to speak with the mother on the father’s behalf. In the absence of any method of objectively assessing the father’s health (and whether he posed a risk to the children) the mother did not make the children available to spend time with the father.
On 12 February 2019, the father sent the following text messages to the mother:
Ok cool. Well how about you just keep them and I won’t see them again?? I’m happy to do that
Honestly I’m happy to never see them again so you just take full custody J J
Better lock the house
Better let me see the kids or else
Start running
The father also called the mother 19 times.
The father sent the following messages to the maternal grandmother “I told [the mother] to take full custody of the kids because I never want to see them again, I wish you all the best” and “I will probably kill your daughter”.
Unsurprisingly, the mother and maternal grandmother contacted the police.
The mother gave evidence that she was very afraid and, at that time, unable to hide her fear from the children. The father gave evidence that this was an isolated incident and occurred at the very peak of his stress.
I find that the mother’s fears were well justified given the history set out above. I do not accept that the father’s conduct on 12 February 2019 was an isolated incident. It may have been the most serious incident but it came at the end of a lengthy history of aggressive outbursts directed at the mother, her partner and her family. The threats to the mother’s partner were similar in nature. It came against a background where the father had been physically violent to the mother, a former partner and other persons he came in contact with (such as soccer referees or people whose driving skills he questioned).
Following this incident, the father was charged with stalking and intimidation and an interim Apprehended Domestic Violence Order (“ADVO”) was made.
On 21 February 2019, the father attended court for an ADVO hearing. The police listed the children on the ADVO application and the magistrate made an order for the protection of the mother and children. The order allowed the father to speak to the children on Thursdays and Sundays between 6.00 pm and 7.00 pm at the mother’s discretion. A final ADVO was made on 19 May 2019.
On 2 March 2019, the father attended court having been charged with stalking and intimidating the mother. The charges were dismissed on 2 May 2019 by application of the provisions of s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Mental Health Act”).
Notwithstanding the terms of the ADVO, the father sent messages to the mother on 6 March 2019 in an effort to see and spend time with the children. The police visited him but no charge of breach was laid.
On 12 March 2019, the mother commenced proceedings by filing an Initiating Application seeking sole parental responsibility and care of the children.
On 12 May 2019, the father left a voicemail on the mother’s phone wishing her a happy mother’s day and sent her a text message on 24 May 2019. The mother made a report to the police and the father was charged. On 27 June 2019 the mother says the father plead guilty to breaching the terms of the ADVO, but no conviction was recorded.
On 31 March 2019, the father was charged with “Drive with Middle Range Prescribed Concentration of Alcohol”. It was in this context that the father says he stated to Dr S (“Dr S”) that he took seven Xanax tablets. The father’s licence was suspended for three months and an interlock device was installed in father’s car for 12 months.
The father was pulled over in the early hours of 31 March 2019. The father told the police that his first drink was at 6.30 pm and he had consumed three beers (Carlton Draught). His credit card records show the father withdrawing $1,600 in lots of $200 from the T Venue and the U Hotel on the evening of 30 March 2019. While some of those funds were no doubt spent on alcohol it is likely that the significant portion were spent gambling.
On 5 June 2019, the children and the father were in the same area. The children were with the maternal grandmother. The father and the maternal grandmother disagree about what happened on the day but there is no suggestion the father behaved in a manner that was aggressive. The mother reported the incident. The father was not charged.
After that encounter, on 7 June 2019 the father sent a message to the maternal grandmother via Facebook:
…I just wanted to let you know I have to pull out of the legal proceedings today as I just don’t have the money to fight anymore. Please tell the kids that I love them and that I tried everything to get them back. I just hope one day where there [sic] old enough they might come and find me. Please look after them and care for them like I know you will. Thank you for the few minutes the other day I really appreciate that and it’s the happiest I have been in months. I wish you all the very best and again I’m sorry it came to this. Xxxx
In September 2019, the mother filed an Amended Initiating Application which also sought orders relating to child support.
On 10 September 2019, the father agrees that he replied to an email from the mother’s solicitors saying “how about you go get fucked”.
On 20 January 2020, the father sent an email to the MM Bank saying “Before long I will probably just kill myself so doesn’t matter”. An ambulance was sent to the father’s home.
On 10 March 2020, the parties attended Court for this matter. The father posted a photo of the entrance to the Sydney Registry of the Family Court on his Facebook page and stated “Oh I so love this place”. He later commented on the post stating:
Complete waste of time. My parents and my sister couldn’t join my case to see the kids they all have to reapply individually and the family report could be up to another 3 years wait. Also made to pay her lawyer $600 for today. I give up. The system is completely fucked.
The father posted a further comment:
I love how [the mother] can sit behind her 3 highly paid lawyers vs lonely me who is fighting to see his kids and fighting for my family to see the kids. I’m so over this fucked up system it’s all about the lawyers. If you have money your [sic] ok if not suck shit.
The father is entitled to feel frustrated by a system which is not always as efficient as would be desirable and he is correct to note that it is significantly more difficult to navigate without legal representation. However, notwithstanding his legitimate grievances he is still engaging in a dialogue which fails to recognise his own role in the creation of the situation in which he finds himself and his posts garner him support in a way which reinforces rather than challenges the way in which he sees himself as the victim.
On 1 May 2020, the mother made an application for the ADVO to be extended but ultimately withdrew her application in December 2020.
The father has made a series of posts on Facebook (or commented on the posts of others – particularly his mother) which presumably represent his attitude to the mother and these proceedings. The father says Facebook is a place where he (publically) vents his frustrations. The posts include:
(a)In February 2020, the father commented on a post by his mother entitled “Parental alienation as a breach of human rights” with the note “I wish a certain person read that”.
(b)In October 2020, the father posted that “Denying a child the joy and memories of being with the other parent is an act of ‘pure evil’”.
(c)In October 2020, the father reposted a post made by the V Group. The father, in a comment, made reference to the incident of 12 February 2019. The father posted the following comments which included:
… Last year she managed to get the kids add to the AVO and I was allowed to ring and speak to the kids between 6-7pm and one night I called at 7.10pm and she had me arrested then a few months later I ran into the kids at the shops and they ran over to me and hugged me and because I didn’t push them away she had me arrested again. Mind you she was in Melbourne at the time. This is happening all to (often now and makes me sick…)
(As per the original)
(d)In November 2020, a Facebook friend of the fathers, Ms W (“Ms W”) responded to a post by the father concerning his family law proceedings. Ms W wrote “So wrong…she needs a bullet”. That comment was ‘loved’ by the father’s sister, Ms Z. The next day, the father posted “I just wanted to give a massive shout out and big thank you to everyone who has messaged me…”. The father’s oral evidence, that he did not read all the comments, was disingenuous. By providing those who were supporting him with only his view of events, the father again failed to acknowledge his own actions and obtained support and encouragement for the view that he was the victim of the mother or the Court. As is apparent, that led to the most frightening of comments on the father’s own Facebook post which he took no action to address.
(e)When Ms W commented on the father’s November 2020 post she also said “…if the shoes were on the feet of these judges it would be a different story, why do courts always side with the mother’s side FFS”. The father ‘loved’ the comment. In his mind – or at least the way in which he chose to portray himself to the outside world, the Court had taken the “side” of the mother because she was the mother as opposed to having done so because the evidence demonstrated the father’s actions had, not surprisingly, caused her both fear and distress.
(f)In February 2021, the father posted a video and stated:
I have to agree this is what I’m currently dealing with. Only the people with money and lawyers win out in the end. It’s a long drawn out mess and needs to be fixed ASAP as we are only a case number to these judges. They have no idea the damage they are doing to families and it sucks. They are just way over loaded and can’t cope with all these cases at once. The time my final hearing comes around it will be nearly 3 years since I have seen my kids and for what??
The father made a comment in reply to a comment by Ms AA which referred to domestic violence stating:
[Y]ep as you said if there is DV or drugs or alcohol involved I totally understand it but when it’s using your kids against you out of spite that’s a horrible thing to do to anyone. My poor kids probably think I just vanished off the face off the earth.
This can only be interpreted as the father voicing a belief that domestic violence and alcohol are not relevant to his situation and perhaps more significantly imputing to the mother a spiteful motive. It is further evidence in support of the conclusion that the father has not acknowledged that his actions are responsible for the position in which he finds himself.
(g)In March 2021, the father posted in response to a petition entitled “6 month mandatory jail for anyone lying to police to obtain an AVO”. His caption read “Totally agree after what I have been through”. The inference was that his former partner had lied to obtain her ADVO. He was unable in oral evidence to identify the lie the mother had told except to contend in general terms that she ought not to have sought that the order cover the children.
(h)In August 2021, the father posted an image on Facebook with the caption:
I promised you I wouldn’t give up on you. I didn’t start this, but I promised I would finish it. They messed with the wrong Dad.
The father has the support of his mother, the paternal grandmother. However, she was not on affidavit. Her views appear plainly set out in multiple Facebook posts which were annexed to the mother’s affidavit. In broad terms, each of the posts suggested that the mother in this case, acting in spite, had separated the father from his children without cause. In one post the paternal grandmother effectively blamed the mother for the father’s lack of stability. Given the attitudes of the paternal grandmother, as evidenced by her social media posts, the father has been encouraged in his view, by those closest to him, that he is not responsible for the position in which he finds himself. This is significant because it suggests that such a position reinforced by family is fixed and not easily capable of change.
On 25 November 2020, there was an incident involving the father and a stranger in the early hours of the morning outside a petrol station in Suburb BB. The father says after leaving the U Hotel he was almost run into by a driver. The father was a pedestrian at the time. The father confronted the driver and the two argued. The driver told the police the father assaulted him. The police have charged the father with common assault and destroying/damaging property valued at or less than $2,000. The police subpoenaed notes record:
The father approached another person at the [petrol station] in [Suburb BB] at around 1.15 am and said, “What the fuck are you doing?” then, without reason, punched this person in the right side of his face and kicked the person’s driver door. The father has entered a plea of not guilty.
The matter is listed for determination by the Local Court of New South Wales in October 2022. The father chose to give oral evidence in these proceedings about the incident after I granted him a certificate under s 128 of the Evidence Act 1995 (NSW). I am able to find on the basis of the father’s evidence that at 1.15 am after leaving the U Hotel, he was involved in an incident with a stranger which resulted in the stranger calling the police and the father being charged with a serious offence. I am not determining that matter. I do however need to take into account the possibility that a magistrate may find the charges proved. Even if the charges are ultimately dismissed, the agreed facts raise concerns about the father’s capacity to deal with conflict and about his continued misuse of alcohol.
Characteristics of the children
X is 10 years old. His mother reported to Ms CC (“Ms CC”), the family consultant, that he has been diagnosed with ADHD and experiences some learning difficulties and insomnia.
X has received support in the past from his school counsellor.
There appeared from the family report to be some suggestion that X may be unsure about whether he would be safe in his father’s care. In about May 2021, X is reported to have said to the mother that he only wants to go to tennis camp “if there is a safe adult there”. The mother described X in cross-examination as intuitive. She expects that he would be empathetic to the way she feels.
Y is seven years old. Her mother has been concerned that Y becomes very distressed over small things.
The children’s views

While it could not be said that the children’s views (in the context of the issues in this case) would assume significant weight in the assessment of what orders are in their best interests, it is appropriate to understand those views in order to give them proper consideration.
X, when speaking to Ms CC records that “X was asked if he misses his father and whether he wishes to resume spending time with his father and he said ‘Not really’. When asked why this was, X said that this was because ‘something bad happened’”. He did not wish to engage with Ms CC on the topic but when asked directly whether his father had yelled, he agreed he had done so. At the time of interview X had not seen his father for about 18 months.
Y was much younger when her parents separated. When she spoke to the Family Consultant she indicated that “She would like to spend time with her father”.
The mother agreed that Y is curious about why she does not see her father.
The mother gave evidence that X has continually said that he does not want to see his father. The mother says she asked X on three separate occasions and each time X said he did not want to see his father.
That evidence is consistent with the mother’s contemporaneous reports to her own treating psychologist, Mr DD (“Mr DD”).
Nature of the children’s relationship with the parents
No party suggests that the children do not have a good relationship with their mother.
The children spoke positively of their father during observations with the family consultant. They spoke about playing with him. Ms CC said that such information may suggest there may be a benefit to the children resuming their relationship with their father. Her observation was guarded in so far as she said any benefit must be weighed against the potential risks.
The mother’s parenting capacity: mother’s mental health
The Court cannot ignore the health of a person with the primary or sole care of the children. The mother has been diligent in seeking treatment for her own mental health over a long period of time. The Court had documents in evidence from the mother’s treating psychologist Dr H in 2014 and 2015, her psychologist Ms EE in 2017 and 2018, her psychologist Ms FF in 2020 and Mr DD in 2021.
The documents in evidence identify the mother’s interactions with the father both pre-separation and afterwards as a significant causal factor in her stress and anxiety.
It is my view that in circumstances where the mother is the uncontested primary carer for the children, it is important that she be supported in her role by orders which are protective of her mental health.
The father’s parenting capacity: father’s mental health
The father has a long standing diagnosis of chronic depression and anxiety. From the time of his diagnosis in 2012, the father has been under the care of psychiatrist, Dr D. Dr D’s notes were available at the hearing but Dr D did not swear an affidavit.
The father commenced to consult the psychologist Mr GG (“Mr GG”) on 15 January 2019. Between January 2019 and 30 June 2020 the father’s consultations with Mr GG were regular and frequent. This may be explained by the terms of the Suburb HH Local Court orders dated 2 May 2019. For reasons not explained adequately by the evidence, the father did not consult Mr GG between 30 June 2020 and 8 February 2021. At the time of trial, the father had not consulted Mr GG since 30 August 2021. It would appear as though Mr GG has retired but no replacement psychologist was in place for the father at the time of hearing.
Mr GG was cross-examined at the hearing. It was plain that the father had not provided Mr GG with all the relevant information about his functioning, his alcohol use, the recent charge of assault or other matters which would have better allowed Mr GG to assist the father.
The same concern arises in terms of the information provided by the father to his treating psychiatrist, Dr D. The father was asked in cross-examination about why he did not raise relevant issues with his treaters and he offered that he was ashamed. Either the father failed to recognise the serious issues in his life or he was unmotivated to acknowledge them. At the time of his separation from the mother he reported to Dr D that there was no trigger or crisis. This was objectively false. More significant in a letter dated 25 May 2017, Dr D wrote that the father had no history of violence. This was not accurate and inconsistent with matters that Dr D had been aware and written about himself in 2012 and correspondence he had received from his colleague, Dr H, about the same time.
At the outset it must be stated that a diagnosis of chronic depression and anxiety in and of itself would not be sufficient to persuade me that there should be no orders for time between the children and their father or necessarily that anytime be supervised. The key question for the Court is whether the father’s presentation (including the symptoms of his illness) create a risk which cannot otherwise be ameliorated.
Ms CC described the father as having difficulty managing his “reactivity”. I agree with that assessment. Across a number of different situations from dealing with the mother’s lawyers, to dealing with the mother and her family, to managing the children’s behaviour, to giving evidence and being cross-examined, the father was reactive (and sometimes angry). The fact that the reactivity manifests in aggression and sometimes violence is in large part uncontroversial.
In 2018, the father’s psychiatrist recommended that he may be a good candidate for transcranial magnetic stimulation (“TMS”). Dr D identified the treatment as useful in the case of patients who are not particularly responsive to medication. It was not approved by his health insurer and the father gave evidence he had spoken with his family and together they had decided that he should not undertake the treatment as they had heard “bad stories”.
The father’s depression has manifest in him expressing suicidal ideation on multiple occasions. These have resulted in attendance at hospital on several occasions. The father appears to deny suicidal intent, describing his own conduct as a cry for help. The father sent the mother a message on 4 February 2019 indicating that he was at Location KK and intended to take his own life. The mother contacted the father’s parents. The father was not located at Location KK and the police conducted a triangulation search and determined the father’s mobile phone was in the Suburb JJ area. The father was scheduled.
The father was taken to R Hospital where he was assessed about 1.30 am on 5 February 2019.
The father was taken to hospital on 31 March 2019 (the day of his DUI). Hospital records suggest that the father reported having taken seven Xanax with the intention to take more (but for having been interrupted by the paternal grandfather). The father was conveyed to hospital by ambulance following the paternal grandfather making contact with the poisons helpline. The father contends that the information about having taken the Xanax was false (he made the claim to get attention) but I note that when the charges arising out of his threats to kill the mother were before the Local Court the report from Ms LL, clinical nurse consultant, repeated the information about drug overdose.
The father was scheduled on 8 June 2019. Police records suggest that the father had been drinking on that occasion and told his father that he wanted to jump off the balcony. He was taken to hospital by the police but escaped at 2.00 am. The police were unable to find him initially but he was returned by the police to the hospital the following day.
As discussed above, the father emailed MM Bank in January 2020 and suggested to the bank that he would likely take his own life. The police became involved. When they attended at the home of the father, the paternal grandfather was there and undertook to stay with the father overnight. The father was due to see Mr GG the following day.
A related issue is the father’s use of alcohol. The fact that the father used alcohol to excess during the parties’ relationship was a source of conflict between them. However, the mother and father both identify that the father had issues of anger management independent of alcohol use. In a letter from Dr D dated 24 May 2012, he recorded the father’s pattern of binge drinking as consuming 40-50 standard drinks every 6-8 weeks.
The father was cross-examined about his consumption of alcohol in the period 30 August 2021 to 29 November 2021. It was suggested to him that he withdrew about $2,400 in the U Hotel in October 2021 and $1,200 in the same Hotel in November 2021. He did not disagree with the proposition that those funds were largely spent on alcohol.
At the time of trial, the father was not seeing a psychologist. In the course of cross-examination, at a point where it was plain he had become exasperated with the process he said he no longer needed to engage with a psychologist:
Father:No, I don’t need. I’m out of that shitty life I was in I just want to move on.
Counsel:         You don’t need to engage with your psychologist further?
Father:           Nope, my life’s fine thank you.
Counsel: Now, of that money that you spent in that two month period at the [U Hotel], is there any reason why you have not applied any of that money toward the liability under the Binding Child Support Agreement?
Father:           Because I don’t have the kids. She’s got them, take them. Move on.
At a different point in the father’s cross examination he made a reference to “not having to be a fucking Einstein” [to understand a proposition] and his inability to pull money out of his “ass”. While I appreciate that the process of being cross-examined is tiring, stressful and sometimes trying, it remains of concern that the father was unable to restrain himself from answering in a manner which demonstrated his attitudes to the mother and the process of adjudication of the parties’ dispute. It confirms the concern that he is unable to regulate his conduct when under pressure – a difficulty which has the potential to expose his children to harm.
Supervised contact
At the conclusion of the hearing the father amended his orders sought (which were marked as Exhibit W) and sought orders for supervised time accompanied by a number of other orders designed to address some of the difficulties in his case.
The family consultant said:
…if the Court finds that [the mother’s] allegations about family violence are likely to be true, or that [the father’s] mental health issues cannot be supported to stabilise, it is the Family Consultant’s recommendation that it would be in the children’s best interests that they spend either supervised time with their father, or no time with their father.
Because an order that the children spend no time with the father should only be contemplated where the evidence clearly identifies no other course consistent with the children’s interest, I have given serious consideration to whether orders for supervised time should be made.
Whatever orders are made, the Court should have some confidence they will function in the best interests of the children when viewed against the background of the findings in the matter.
In this case, it seems plain that prior to separation and from time to time after separation the children enjoyed spending time with their father. The time was not without issue. The father’s angry outbursts would have been experienced as frightening by the children. Some time has passed since the children spent time with the father but it is plain that X in particular continues to experience anxiety associated with seeing or spending time with his father.
The family consultant identified that:
The benefit of the children spending supervised time with their father is that they might still have the opportunity to know him and this would benefit their identity formation.
As against that, the family consultant recognised that the father had found it difficult to acknowledge the existence of what would ordinarily be considered as curbs on aggressive behaviour and so it could not be confidently predicted that supervision would function protectively.
The family consultant cautioned that in order to contemplate an order for time (including supervised time), it was necessary to understand both whether that time would be meaningful to the children and whether or not viewed holistically it would be in their best interests. Put another way – having regard to the potential negative consequences of supervised time for the children and their primary carer, can such time be considered in the children’s best interests?
Ultimately, Ms CC emphasised that the children’s safety and wellbeing need to take precedence. Given the findings I have made about the father’s conduct and its impact on the mother and X, I am unable to satisfy myself that orders for supervised time are appropriate.
I find that the presumption in favour of equal shared parental responsibility has been rebutted by my findings that the father has engaged in family violence: s 61DA of the Act.
I find that in the circumstances it is in the best interests that I make orders that provide for the mother to have sole parental responsibility and for the children to live with the mother and spend no time with the father.
CONSIDERATION: CHILD SUPPORT
The child support agreement came into effect on 13 October 2017. The agreement provided that neither party would be required to make periodic payments one to the other.
The agreement required the father to pay 50 per cent of the following expenses for the children as and when they fall due:
(a)tuition expenses and school fees at any school where the children are enrolled as agreed between the parties;
(b)extra-curricular and sporting activities, and associated costs for each of the children provided that the mother and father agree, in writing, for each respective child to participate in such activities;
(c)school and sport uniform costs;
(d)the costs of any private tutor;
(e)other schooling costs as required by the school including but not limited to textbooks, educational materials, laptops, computers and tablets, school excursions and camps;
(f)private health insurance premiums at the highest rate of cover; and
(g)gap medical and dental costs for the children including but not limited to hospital, optical, physiotherapy, pharmaceutical and orthodontic.
It is important to understand the history of how the children came to attend school and whether or not the children are attending the school which the parents agreed they should be enrolled.
At the time the parties entered into the child support agreement, neither X nor Y were attending their current school. Tendered into evidence and marked Exhibit S are documents produced on subpoena by NN School (“NN School”). On 19 March 2013, both parents enrolled X to commence prep at NN School in 2015. As it transpired, X did not commence NN School in 2015 but started at PP School in 2017. There is no evidence as to why it was that X did not commence at NN School. On 25 June 2018, NN School offered the parents a position for X to commence Year 1 in Term 1 2019. The documents record that the father signed his consent to the enrolment on 2 July 2018, being a date after the date on which he entered into the child support agreement.
The parties completed a document entitled NN School Pre-School Information Form for Y on 20 November 2017, being a date after they had entered into the child support agreement.
The documentation also showed NN School receiving Y’s enrolment application on 18 March 2016. Accordingly, I can be comfortably satisfied that both of the parents consented to X and Y being enrolled in NN School and accordingly, for the purpose of the child support agreement, clause 28.1, to the extent that it required that the tuition expenses and school fees be at “any school where the children are enrolled as agreed between the parties”, I accept that the father agreed to the children’s enrolment.
The mother provided a copy of the child support agreement to the Department of Human Services and it was accepted by them and notified to her by letter dated 26 November 2019.
The father says that his consent to enrolment was conditional on his understanding that the school fees and expenses for the school attended by the children would be met by the mother’s family. If one were to examine the father’s financial circumstances, his explanation as to why he entered into the child support agreement makes sense. At first glance, his finances do not seem to be sufficiently robust to permit him to contribute in the way that the child support agreement would require. However, the father must establish that there are reasons why the child support agreement ought not be binding upon him in circumstances where its plain terms made no reference to any persons other than he and the mother being required to meet the children’s fees and expenses. The father had the benefit of independent legal advice in respect of the terms of the agreement. Accordingly, the only basis upon which the father could be heard to agitate a case that the agreement should be set aside is on the basis on facts and circumstances occurring after the time he entered into the agreement.
The evidence establishes the following in respect of the father’s financial circumstances following entering into the agreement. On 13 October 2017, when the agreement came into effect, the father was employed. In May of 2018, the father became unemployed and from that period of time was not in receipt of personal exertion income in the months of May 2018 through to February 2019.
In addition to personal exertion income, the father was in receipt of income from his rental property. That rental property was encumbered. The mortgage payments in respect of that property were $2,200 per month. In January of 2019, at a point where the father was unemployed, the investment property became untenanted. It is not clear from the affidavit evidence for what period of time those premises were untenanted at that time.
The father obtained employment again in March of 2019. He was employed by QQ Company on an income of $70,000 per annum.
It is important to understand what that income would have provided to the father in real terms and the extent of his obligations under the child support agreement. The evidence establishes that the school fees payable in respect of X and Y in 2019 were $6,265 per term. It would have been difficult for the father to meet his share of those fees and the other expenses set out in the child support agreement from his post tax income.
The father retained his employment with QQ Company until October of 2019. In November of 2019, he became unemployed again before obtaining further employment with RR Company on an income of $71,000 per annum.
The father retained that employment in the months of December 2019 through to August 2020 when he again became unemployed. At that point the father was unemployed until he obtained work in June of 2021.
During periods of unemployment, which coincided with the COVID-19 Pandemic (“Covid”), the father received Job Keeper payments.
In June of 2021, the father was employed at TT Company earning $70,000 per annum. The father retained this employment at the time of hearing. In November 2021, the father’s investment property again became untenanted and was untenanted for the period November 2021 – February 2022 when the father obtained a tenant who signed a lease for $455 per week.
The father also experienced a rental reduction in respect of his investment property at periods during Covid when he was in receipt of $400 per week for the rent. While the mortgage repayments in respect of the investment property remained at $2,200 per month, the father was required to meet the short fall from his own funds.
I accept that if the father had experienced a period of unemployment, this would be inadequate to satisfy the test that an agreement will only be set aside if the circumstances are exceptional in nature. I accept that if the father was required to accept reduced rental income on his investment property or lose his tenant, this as well in and of itself could not be considered satisfactory to meet the definition of exceptional circumstances. In this case, I have formed the view that the number of times the father has lost his employment, the length of the periods of unemployment, in circumstances where it seems plain that the father was intending to seek, find and undertake work, combined with the circumstances of Covid and him losing tenants for his investment property on more than one occasion, taken together with the fact that his income has not changed significantly in the five years since the child support agreement was entered into, all collectively are sufficient to constitute exceptional circumstances. Those exceptional circumstances would result in the father suffering financial hardship if the child support agreement were not set aside. In Simpson and Hamlin (1984) FLC 91-576, the Court said as follows:
27.The question therefore was whether the change which occurred in this case was such as to “take it out of and beyond the ordinary circumstances in which such change might be reasonably expected to occur”.
…
28. His Honour in our view stated correctly the law applicable on this point. What amounts to “exceptional circumstances” is very much a question of fact and degree.

I accept that the intention of Parliament in making legislative provision for Binding Child Support Agreements was to provide certainty to the parties in circumstances where each of them had the opportunity to obtain legal advice. I accept that in those circumstances it was the intention of parliament that agreements of this nature should not be set aside lightly: Balzano & Balzano (2010) FLC 98-048.
In determining that the circumstances which have arisen are exceptional in nature and would lead to hardship to the father, I consider that the hardship which would be occasioned to him is of such a serious nature that it can only be rectified by setting aside the child support agreement.
The facts and circumstances in this case take the matter beyond the ordinary course of events where it might be considered unexceptional to lose one’s employment.
In setting aside the child support agreement, I also set aside the provision which provides that neither party shall be required to pay periodic child support one to the other. That leaves the mother free to make an application for child support through the Child Support Agency, such child support to be payable to her in accordance with a child support assessment in place from time to time.
While the existence of the child support agreement provided that the mother received no child support from the father, if there is a child support assessment in place and the father continues to work as a PAYE tax payer, then it is anticipated that the mother will be in receipt of child support from the father.
Because I have found that the child support agreement is to be set aside as a consequence of events which post-date the making of the child support agreement, I do not intend to set it aside as though the father and mother had never entered into the agreement. Doing the best I can and in reliance on the uncontroversial evidence, I find that it should be set aside from the time the father was both unemployed and without income from his tenants. The evidence establishes that no later than 19 January 2019 the father had been unemployed for nearly 9 months and had also lost rental income from his investment property. According to Exhibit BB, the amount outstanding at that time was $12,046.48.
The mother sought that interest be payable on the money outstanding under the child support agreement. The decision as to whether to levy interest on the outstanding sum is a discretionary one. Because I have found there are exceptional circumstances of a financial nature such as to warrant the child support agreement being set aside on the basis of hardship, I do not find it would be appropriate to order interest payable and I decline to do so.

I certify that the preceding one hundred and ninety-three (193) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.
Associate:
Dated: 13 April 2022

File number(s):	SYC 6392 of 2017
Judgment of:	CHRISTIE J
Date of judgment:	13 April 2022
Catchwords:	FAMILY LAW – JURISDICTION – Where proceedings were initiated in the Family Court of Australia prior to 1 September 2021 – Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208 followed – Legislative intent that the jurisdiction of the Family Court of Australia continue in the Federal Circuit and Family Court of Australia (Division 1) in respect of proceedings filed in it – Where the matter has been transferred by the Chief Justice of Division 1 and subsequently transferred by the Chief Judge of Division 2 – Where the Court is satisfied that Division 1 has jurisdiction to hear and determine this application. FAMILY LAW – PARENTING – Allegations of family violence and excessive alcohol consumption made against the father – Concern as to the father’s mental health – Where the father’s engagement with treating practitioners has suffered by his lack of candour with them – Where the father has been encouraged in his view that he is not responsible for the position he finds himself by those closest to him – Where it is only when there is some indication of changed thinking or changed behaviour that there can be confidence the father’s conduct won’t be repeated – Where interactions with the father cause the child and mother anxiety – Not in the children’s best interests to spend supervised time with the father – Orders for the children to live with their mother and spend no time with their father. FAMILY LAW – CHILD SUPPORT – Where hardship to the father can only be rectified by setting the child support agreement aside – Exceptional circumstances substantiated – Agreement set aside – Mother able to apply for child support assessment if required.
Legislation:	Child Support (Assessment Act) 1989 (Cth) ss 99, 136 Child Support (Registration and Collection) Act 1988 (Cth) Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA Federal Circuit and Family Court of AustraliaAct2021 (Cth) ss 52, 132, 149 Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 1, Sch 2 Evidence Act 1995 (NSW) s 128 Mental Health (Forensic Provisions) Act 1990 (NSW) s 32
Cases cited:	Balzano & Balzano (2010) FLC 98-048 Cirillo & Cirillo (No 4) (2022) FedCFamC1F 208 Simpson and Hamlin (1984) FLC 91-576 Nevins& Urwin (No 3) [2022] FedCFamC1F 201
Division:	Division 1 First Instance
Number of paragraphs:	193
Date of hearing:	21-25 February 2022
Place:	Sydney
Counsel for the Applicant:	Mr Dura
Solicitor for the Applicant:	Barry Nilsson Lawyers
Solicitor for the Respondent:	Marsdens Law Group
Counsel for the Independent Children's Lawyer:	Mr Hill
Solicitor for the Independent Children's Lawyer:	Kathryn Renshall Lawyers

SYC 6392 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CATLING Applicant
AND:	MR GOULD Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	13 APRIL 2022